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Sex-With-Students Comment Gets Student Teacher Bounced

Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.

By Kimberly Robinson

Dec. 30 — Statements
that sexual relationships between teachers and underage students
were “fine” properly led to the denial of a student's application
to become a student teacher, the Ninth Circuit held Dec. 29.

The University of Hawaii didn't violate student Mark
Oyama's First Amendment rights by denying his application, Judge
Kim M. Wardlaw's opinion for the U.S. Court of Appeals for the
Ninth Circuit said.

The court spent much of its time searching for the
right framework to analyze Oyama's First Amendment claim and landed
on a hybrid one for evaluating free speech claims brought by
university students seeking training for public employment.

A number of other federal courts have seemingly
applied a similar framework, though the “doctrinal bases for these
decisions differ: some invoke student speech doctrine, some rest on
public employee speech doctrine, and at least one presents a new
test altogether,” the court said.

Tests Inadequate

Neither the student speech doctrine—assessing the
regulation of student speech at K-12 institutions—nor the public
employee speech doctrine—assessing the regulation of government
employees' speech—provided an adequate method because they failed
to consider “the role of academic freedom at public universities,”
the court said.

Moreover, the public employee regime was inadequate
because as “a student at the University of Hawaii, Oyama enjoyed
greater freedom to test his ideas, critique professional
conventions, and develop into a more mature professional than he
would as a government employee.”

Improper Relationships

Several circuits—including the First, Sixth, Tenth
and Eleventh—have adopted similar “certification” frameworks, the
court said.

It added that even though “these decisions lack a
common doctrinal foundation, they appear to provide a rule we find
instructive here: universities may consider students' speech in
making certification decisions, so long as their decisions are
based on defined professional standards, and not on officials'
personal disagreement with students' views.”

The Ninth Circuit fashioned its own test, saying
that the university's action here passed constitutional muster
because it “related directly to defined and established
professional standards, was narrowly tailored to serve the
University's core mission of evaluating Oyama's suitability for
teaching, and reflected reasonable professional judgment.”

Refusing to approve Oyama for student teaching—a
necessary step to becoming a teacher in Hawaii—because he said
“that ‘it would be fine' for ‘a 12-year-old girl' to have a
‘consensual' relationship with her teacher” was directly related to
the university's duty to ensure that Oyama met state and federal
teaching standards, the court said.

Oyama's statements were inconsistent with rules
prohibiting such relationships and requiring teachers to report
them, the court said.

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